WRIT PETITION NO. 7056 OF 2018

21st February 2020

Petitioner Counsel: Shri Sunil Manohar Ms. Ramaa V. Kukday Shri S.V. Sirpurkar Dr. Mrs. Renuka S. Sirpurkar
Respondent Counsel: Shri N.R. Patil
Act Name: Limitation Act, 1963 Maharashtra Land Revenue Code, 1966 Code of Criminal Procedure, 1973 Bombay High Court Appellate Side Rules, 1960 Constitution of India, 1950

Section :
Section 5 Limitation Act, 1963 Section 48(7) Maharashtra Land Revenue Code, 1966 Section 48(8) Maharashtra Land Revenue Code, 1966 Section 417(3) Code of Criminal Procedure, 1973 Section 417(4) Code of Criminal Procedure, 1973

Cases Cited :
Paras 3, 6: M/s. Bhandara Traders, Bhandara, through its Proprietor Vs. State of Maharashtra and others, Writ Petition No.4401 of 2017
Para 3: Kaushalya Rani Vs. Gopal Singh, reported in AIR 1964 SC 260
Para 4: Life Insurance Corporation of India Vs. D.J. Bahadur and others, reported in (1981) 1 SCC 315
Para 4: Allahabad Bank Vs. Canara Bank and another, reported in (2000) 4 SCC 406
Para 18: Director of Enforcement Vs. M.C.T.M. Corporation Pvt. Ltd. and others, reported in (1996) 2 SCC 471
Para 25: Suraj Balbhim Shelke Vs. The State of Maharashtra and others, reported in 2016 ALL MH (Cri) 4453

JUDGEMENT

R. K. DESHPANDE, J.

1. Writ Petition No.7056 of 2018 challenges the order dated 26-9-2018 passed by the respondent No.2- Additional Collector, Chandrapur in exercise of his power conferred by sub-section (7) of Section 48 of the Maharashtra Land Revenue Code, 1966 imposing penalty of Rs.2,13,44,400/- for unauthorizedly extracting 2,541 brass of sand from unallotted Survey Nos.159, 158 and 157 of Mouza Halda.

2. Writ Petition No.4268 of 2018 challenges the order dated 12-2-2018 passed by the Sub-Divisional Officer, Warora seizing and confiscating the vehicles – Tractor No.MH-34L-7064 and Trolley No.MH-34L-7065 on 13-12-2017 under sub-section (8) of Section 48 of the Maharashtra Land Revenue Code for illegal and unauthorized transportation of 100 brass of sand without permit. The order imposes the fine of Rs.2,00,000/- for release of the vehicles and requires the petitioner to execute a bond.

Different views :

3. Relying upon the decision of the learned Single Judge [Shri S.G. Gupte, J.] passed on 23-8-2017 on the preliminary objection raised in Writ Petition No.4401 of 2017 [M/s. Bhandara Traders, Bhandara, through its Proprietor v. State of Maharashtra and others], which follows the decision of the Apex Court in the case of Kaushalya Rani v. Gopal Singh, reported in AIR 1964 SC 260, Shri Sunil Manohar, the learned Senior Advocate, assisted by Advocate Ms Ramaa Kukday for the petitioner in Writ Petition No.7056 of 2018, has urged that the matter falls within the jurisdiction of the learned Single Judge. According to him, the Maharashtra Land Revenue Code cannot be considered as a special statute in terms of the third proviso below Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 so as to exclude it from the jurisdiction of the learned Single Judge.

4. Relying upon the referral order dated 31-7-2018 passed by the another learned Single Judge (Shri S.B. Shukre, J.), which relies upon the decision of the Apex Court in the cases of Life Insurance Corporation of India v. D.J. Bahadur and others, reported in (1981) 1 SCC 315, and Allahabad Bank v. Canara Bank and another, reported in (2000) 4 SCC 406, it is urged by the learned Assistant Government Pleader Shri Patil that the provision of sub-section (8) of Section 48 under the Maharashtra Land Revenue Code can be considered as a special statute and, therefore, in terms of the third proviso below Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, the matter is excluded from the jurisdiction of the learned Single Judge and, therefore, it is required to be decided by the Division Bench.

Reference :

5. The present reference to a Larger Bench arises out of the disagreement expressed in respect of the view that “The Maharashtra Land Revenue Code is not a special statute and, therefore, the matter is to be dealt with by the Single Judge”. Though the referral order does not express any opinion as to whether the Maharashtra Land Revenue Code is a special statute or not, an opinion is expressed that the provision of sub-section (8) of Section 48 of the Maharashtra Land Revenue Code empowering the Collector to impose the penalty or seize and confiscate the mineral, machinery or vehicle can be described as a special statute within the meaning of the third proviso and, therefore, it excludes the jurisdiction of the Single Judge and confers the jurisdiction upon the Division Bench to hear and dispose of such writ petition.

Questions referred for consideration :

6. In view of the aforesaid rival contentions on the preliminary issue, the following two questions are referred for the decision of this Larger Bench by the referral order dated 31-7-2018 expressing disagreement with the view taken by the another learned Single Judge in M/s. Bhandara Traders’s case, cited supra :
“1. Whether the order passed by a Revenue Officer in exercise of his power under Section 48(8) of the Maharashtra Land Revenue Code could be considered to be an order passed in a special statute?
2. Whether the order passed by a Revenue Officer under Section 48(8) of the Maharashtra Land Revenue Code would fall within the ambit of the explanation to Rule 18 Chapter 17 of the Bombay High Court Appellate Side Rules, 1960?”

Relevant provisions of the Maharashtra Land Revenue Code, 1966 :

7. Chapter III under the Maharashtra Land Revenue Code deals with the lands, and Section 20 therein deals with the title of State in all the lands, public roads, etc., which are not the property of others. In terms of sub-section (1), all public roads, lanes and paths, the bridges, ditches, dikes and fences on, or beside, the same, the bed of the sea and of harbours and creeks below the high water mark, and of rivers, streams, nallas, lakes and tanks and all canals and watercourses, and all standing and flowing water, and all lands wherever situated, which are not the property of persons legally capable of holding the property, are declared to the property of the State Government and the Collector of the District, subject to the orders of the Commissioner, is empowered to dispose of them in such manner as may be prescribed by the State Government.

8. Section 48 under the said Chapter deals with the Government title to mines and minerals, and sub-section (1) therein states that the right to all minerals at whatever place found, whether on surface or underground, including all derelict or working mines and quarries, old dumps, pits, fields, bandhas, nallas, creeks, river-beds and such other places, as is declared to be expressly reserved, vests in the State Government, which shall have all powers necessary for the proper enjoyment of such rights. Under sub-section (3) of Section 48, the State Government is empowered to assign to any person its right over any minerals, mines or quarries, and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub-section (2) should be exercised, the Collector is empowered, by an order in writing, subject to such conditions and reservations as he may specify, to delegate such powers to the person to whom the right has been assigned.

9. Under sub-section (7) of Section 48, any person, who, without lawful authority, extracts, removes, collects, replaces, picks up or disposes of any mineral from working or derelict mines, quarries, old dumps, fields, bandhas (whether on the plea of repairing or construction of bunds of the fields or on any other plea), nallas, creeks, river-beds, or such other places wherever situate, the right to which vests in, and has not been assigned by the State Government, is liable to pay the penalty of an amount up to five times the market value of the mineral so extracted, removed, collected, replaced, picked up or disposed of, as the case may be.

10. Clause (1) of sub-section (8) of Section 48 states that without prejudice to the provision of sub-section (7), the Collector or any revenue officer authorized by the Collector in this behalf, may seize and confiscate any mineral extracted, removed, collected, replaced, picked up or disposed of from any mine, quarry or other place referred to in sub-section (7), the right to which vests in, and has not been assigned by the State Government, and may also seize and confiscate any machinery and equipment used for unauthorized extraction, removal, collection, replacement, picking up or disposal of minor mineral and any means of transport deployed to transport the same.

11. Clause (2) of sub-section (8) of Section 48 deals with the release of machinery or equipment or means of transport, used for unauthorized extraction, removal, collection, replacement, picking up or disposal of minor minerals or transportation thereof, seized under sub-section (1) on payment of such penalty, as may be prescribed, and furnishing personal bond, as required.

Relevant scheme in brief under the Maharashtra Land Revenue Code :

12. All lands, public roads, etc., which are not the property of others, wherever are situated, remain the property of the State Government and the Collector of the District, subject to the orders of the Commissioner, is empowered to dispose of them in such manner as may be prescribed. The rights to all minerals at whatever place found, whether on surface or underground, vest in the State Government and the Collector or his delegatee is empowered to delegate the powers of proper enjoyment of such rights to any person to whom the State Government has assigned the rights over any mineral, mine or quarry. Whosoever, without lawful authority of the State Government, extracts, removes, collects, replaces, picks up or disposes of any mineral found at any place, whether on surface or underground, or in contravention of the conditions and reservations imposed in the order, if any passed by the Collector, is liable to pay the penalty of an amount upto five times the market value of the minerals so extracted, removed, collected, replaced, picked up or disposed of, as the case may be. Without prejudice to this, the Collector or the Revenue Officer, authorized by the Collector, is empowered to seize and confiscate any mineral extracted, removed, collected, replaced, picked up or disposed of from any mine, quarry or other place, the right to which vests in or has not been assigned by the State Government. It further confers powers to seize and confiscate any machinery and equipment used for unauthorized extraction, removal, collection, replacement, picking up or disposal of mining mineral and any means of transport deployed to transport the same. The procedure and conditions for release of seized machinery and equipment are also prescribed.

The relevant provisions of the Bombay High Court Appellate Side Rules, 1960 :

13. Chapter XVII of the Bombay High Court Appellate Side Rules deals with the petitions under Articles 226 and 227 of the Constitution of India and issuance of writs and orders under the said Articles. In terms of Rules 1, 4 and 17 therein, all such petitions or applications are required to be heard and disposed of by the Division Bench. Rule 18 under the said Chapter confers the jurisdiction upon the Single Judge, to hear and dispose of the applications under Article 226 or 227 of the Constitution of India, arising out of the orders passed under various enactments specified under Items (1) to (46) therein. The Maharashtra Land Revenue Code is in this list as Item No.(21). The Explanation below Rule 18 states that the expression “order” appearing in Items (1) to (46) means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the statutes mentioned therein. Thus, the jurisdiction of the learned Single Judge extends to hearing and disposal of the petitions filed under Article 226 of the Constitution of India in respect of the order passed by the judicial or quasi judicial authority empowered to adjudicate under any of the provisions of the enactments at Items (1) to (46), which include Item (21) of the Maharashtra Land Revenue Code.

14. The third proviso below Rule 18 carves out an exception and confers the jurisdiction upon the Division Bench to hear and decide the petitions or applications under Article 226 of the Constitution of India in respect of certain orders specified therein, and it is reproduced below :
“Provided also that all petitions/applications under Article 226 and/or 227 of the Constitution of India arising out of or relating to an order of penalty or confiscation or an order in the nature thereof or an order otherwise of a penal character and passed under any special statute shall be heard and decided by a Division Bench hearing Writ Petitions.”
In terms of the aforesaid proviso, all the petitions/applications under Article 226 and/or 227 of the Constitution of India arising out of or relating to an order of penalty or confiscation or an order in the nature thereof or an order otherwise of a penal character and passed under any special statute is required to be heard and decided by the Division Bench hearing the writ petitions.

Consideration :

15. We now proceed to deal with the aforesaid questions of law referred for the decision of this Larger Bench. All the writ petitions under Article 226 of the Constitution of India challenging the administrative as well as judicial or quasi judicial orders are required to be heard and disposed of by the Division Bench in terms of Rules 1, 4 and 17 under Chapter XVII of the Bombay High Court Appellate Side Rules. Rule 18 therein carves out an exception and it confers a jurisdiction upon the Single Judge to hear and dispose of the writ petitions challenging the orders passed by the judicial or quasi judicial authorities under several enactments, which are listed at Items (1) to (46) therein.

16. Two tests are required to be satisfied by the Single Judge to hear and dispose of the writ petitions under Articles 226 and 227 of the Constitution of India and those are - (i) that it challenges the judicial or quasi judicial orders, and (ii) that such orders are passed in exercise of the statutory power conferred under the enactments specified in Items (1) to (46). Thus, the nature of the order and the enactment covered by Rule 18; are the two tests. Any decision by the Single Judge travelling beyond the scope of Rule 18 would be void. Therefore, the provision of Rule 18 will have to be construed strictly. The Single Judge cannot travel beyond the restrictions imposed therein.

17. The third proviso below Rule 18 operates as an exception to Rule 18. It confers a jurisdiction upon the Division Bench in respect of the petitions/applications under Article 226 and/or 227 of the Constitution of India, challenging the order of penalty or confiscation or an order in the nature thereof or an order otherwise of a penal character passed under the special statute. It is an exception to exception, making Rule 18 a general rule, to which the third proviso is an exception. The function of this proviso is to remove special cases from general enactment and to provide them specifically. The test of the nature of order – whether judicial or quasi judicial or administrative – loses its significance under the third proviso. Two tests are required to be satisfied - (i) that the petition challenges an order of penalty or confiscation or an order in the nature thereof or an order otherwise of a penal character, and (ii) that such order is passed under any special statute. Consequently, the jurisdiction to hear and dispose of the petitions or applications under Article 226 and/or 227 of the Constitution of India, challenging the orders passed, satisfying these two tests, is taken out of the jurisdiction of the Single Judge and conferred upon the Division Bench.

18. There are two kinds of penal liabilities, (i) arising out of the breach of the civil obligation under the provisions of the Act, and (ii) arising out of an act which is considered to be a crime and made punishable. There is a marked distinction between these two, which is made out in the decision of the Apex Court in the case of Director of Enforcement v. M.C.T.M. Corporation Pvt. Ltd. and others, reported in (1996) 2 SCC 471. In the earlier case, the contravention of law is required to be established and the element of mens rea is not essential. The proceedings are quasi judicial and adjudicatory in nature and neither criminal nor quasi criminal in nature and the proof “beyond reasonable doubt” is not required. The proceedings are conducted by the administrators following the rules of natural justice to the extent applicable and not by a Court competent to impose punishment. It is the delinquency of the defaulter itself which establishes his blameworthy conduct irrespective of the fact whether he committed the breach with or without any guilty intention. In the latter case, mere contravention of law would not be enough, but mens rea is considered as the guilty intention, without which there cannot be a finding of guilt for the commission of crime. The proceedings are conducted by the Court or the authority empowered by law and they are in the nature of criminal or quasi criminal and without conducting trial, no punishment can be imposed.

19. We now proceed to examine in the light of the aforesaid position the language employed in the third proviso, which requires two tests to be satisfied. The first test is that the petition challenges an order of penalty or confiscation or an order in the nature thereof or an order otherwise of a penal character. In our view, the expression “an order otherwise of a penal character” shows the involvement of a crime arising out of the contravention of law for which a criminal trial is necessary to be conducted by the Court or the authority empowered by law in the criminal or quasi criminal proceedings, under any enactment or statute. Therefore, mens rea becomes an essential ingredient to record the finding of guilt. In the conduct of trial, the proof beyond reasonable doubt is required to establish guilt, as in criminal cases.

20. We are further of the view that the whole expression, i.e. “an order of penalty or confiscation or an order in the nature thereof or an order otherwise of a penal character” attracts the rule of construction noscitur a sociis. When two or more words susceptible of analogous meaning, are coupled together, they are understood to be used in their cognate sense. They take as it were their colour from each other, i.e., the more general is restricted to a sense analogous to a less general. Therefore, the words “an order of penalty or confiscation or an order in the nature thereof” are general and take their colour from an expression “an order otherwise of a penal character”, which is less general. It is, therefore, amply clear that “an order of penalty or confiscation or an order in the nature thereof” means one involving mens rea as an essential ingredient to record the finding of guilt which acquires a penal character of an offence made punishable and can be tried only by a Court and not by a quasi judicial authority competent to impose penalty arising out of the breach of civil obligation under the provisions of the Act.

21. In view of the aforesaid interpretation of the third proviso below Rule 18 under Chapter XVII of the Bombay High Court Appellate Side Rules, we examine the provisions of sub-sections (7) and (8) of Section 48 of the Maharashtra Land Revenue Code. The provision of imposition of penalty under sub-section (7) and seizure and confiscation of minerals along with the machinery and equipment under sub-section (8) arises out of the breach of civil obligation under the provisions of the Maharashtra Land Revenue Code, which is distinct from imposing the penalty or the confiscation of a penal character. The proceedings before the authority under sub-sections (7) and (8) are quasi judicial in nature, distinct from the proceedings of criminal or quasi criminal in nature. The proceedings are conducted by the administrators following the rules of natural justice to the extent applicable and not by a Court competent to impose the punishment. The element of mens rea is not involved, but it is the blameworthy conduct which makes a person liable for penalty, and mere contravention of law is enough without any guilty intention.

22. We, therefore, hold that the order passed by the authority under sub-section (7) and/or (8) of Section 48 of the Maharashtra Land Revenue Code cannot be described as “an order of penalty or confiscation or an order in the nature thereof or an order otherwise of a penal character”, as contemplated by the third proviso below Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules. The jurisdiction to deal with such kind of orders retains with the Single Judge.

23. Coming to the second test employed under the third proviso that such an order is passed under any special statute, the decision of the Apex Court in the case of Kaushalya Rani, relied upon by Shri Sunil Manohar, needs to be seen. In this decision, the question was whether the provisions of Section 5 of the Limitation Act apply to an application for special leave to appeal from an order of acquittal under sub-section (3) of Section 417 of the Code of Criminal Procedure. It is held that the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation. It is further held that the Code of Criminal Procedure is indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character.

24. In Kaushalya Rani’s case, the example quoted was of a Land Revenue Code, which is a general law regulating the relationship between the revenue-payer and the revenue-receiver or the rent-payer and the recent-receiver. It is held to be a general law, in the sense that it lays down the general rule governing such relationship, but it may contain special provisions relating to bar of time in specified cases different from the general law of limitation. It is held that such a law will be a special law with reference to the law generally governing the subject-matter of that kind of relationship. It is thus held that a special law, therefore, means a law enactment for special cases in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, it is held that the code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of such cases in special circumstances like those contemplated by Section 417(3) and (4), read together, it will be special law contained within the general law.

25. Relying upon the decision of the Apex Court in D.J. Bahadur’s case, the referral order has expressed disagreement with the earlier view taken in M/s. Bhandara Traders’ case. The referral order relies upon Paragraph 39 of the decision of the Apex Court, wherein it is held that for certain cases, an Act may be general and for certain other purposes, it may be special and the court cannot blur a distinction when dealing with the finer points of law. The referral order takes the view that the power to impose penalty under sub-section (8) of Section 48, consequent upon seizure of the vehicle, would have to be considered for determination of its character in relation to a similar power of seizure generally conferred upon a Police Officer under the Code of Criminal Procedure. The reference is also made to a Division Bench decision of this Court in the case of Suraj Balbhim Shelke v. The State of Maharashtra and others, reported in 2016 ALL MH (Cri) 4453.

26. The Apex Court in Paragraph 49 of the decision in D.J. Bahadur’s case was confronted with the question as to whether the Life Insurance Corporation Act is a special legislation or a general legislation, because the legal maxim generalia specialibus non derogant is ordinarily attracted where there is a conflict between a special and a general statute and an argument of implied repeal is raised. Even in Kaushalya Rani’s case, the Apex Court considered the provision of limitation contained in the Limitation Act and in the Code of Criminal Procedure. It is held that the Code of Criminal Procedure contains a special provision prescribing a period of limitation to file special leave to appeal and, therefore, it is a special law and the general law of limitation is not applicable. We are of the view that such a doctrine is attracted only in the cases where there is a conflict between the provisions of a special and a general statute on the same subject. In the present case, there is no such conflict between two statutes pointed out. We have not been pointed out any similar or parallel provision on the subject, like those contained in sub-sections (7) and (8) of Section 48 of the Maharashtra Land Revenue Code existing in any other enactment. In the decision of the Apex Court in Kaushalya Rani’s case, the Maharashtra Land Revenue Code is held to be a general law regulating the relationship between the revenue-payer and the rent-receiver or the rent-payer and the rent-receiver. We are, therefore, of the view that the Maharashtra Land Revenue Code is a general statute/law and in the absence of any provision parallel or similar to sub-sections (7) and (8) of Section 48 existing in any other enactment, the doctrine of generalia specialibus non derogant is not attracted, and even if we consider the provision of Section 48 as a separate code consisting of sub-sections (1) to (9), the same cannot be construed as a special statute.

27. From the position pointed out above, we hold that in a challenge to the orders passed under sub-sections (7) and (8) of Section 48 of the Maharashtra Land Revenue Code, the third proviso below Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules is not at all attracted for two reasons - (i) that such an order cannot be called as an order having a penal character, and (ii) that the provision of sub-sections (7) and (8) of Section 48 cannot be considered as a special statute. The net result would be that the petitions/applications under Article 226 and/or 228 of the Constitution of India, challenging the order passed under sub-section (7) or (8) of Section 48 of the Maharashtra Land Revenue Code will have to be heard and finally disposed of by the Single Judge.

28. The questions of law referred for the decision of this Larger Bench are answered as under :
(1) The order passed by the Revenue Officer in exercise of his power under Section 48(8) of the Maharashtra Land Revenue Code, 1966 cannot be considered to be an order passed in a special statute.
(2) The order passed by the Revenue Officer under Section 48(8) of the Maharashtra Land Revenue Code falls within the ambit of the Explanation to Rule 18 under Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 and, therefore, the matter is required to be dealt with by the Single Judge.

29. Both these matters be accordingly placed before the learned Single Judge for disposal in accordance with law.